Aderibigbe (Migration)

Aderibigbe (Migration) [2021] AATA 2274 (12 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Idowu Micheal Aderibigbe
CASE NUMBER:  2100558
HOME AFFAIRS REFERENCE(S):          BCC2018/1454764
MEMBER:Kira Raif
DATE:12 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 12 May 2021 at 3:10pm
CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – ground for cancellation – incorrect information in visa application – travel history – nature of relationship with the sponsor – ‘one night stand’ – three children from relationship with another woman – credibility concerns – consideration of discretion – deliberate breach – best interest of the children – treatment for diabetes – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), rr 1.15A, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a national of Nigeria, born in November 1964. He was granted the Partner visa in Subclass 100 in April 2016. On 1 July 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, Notice) as the delegate formed the view that there may be grounds for cancelling the visa under s.109 of the Act for non-compliance with s.101 of the Act. The applicant provided his response to the Notice and the visa was cancelled on 18 January 2021. The applicant seeks review of the delegate’s decision.
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The applicant appeared before the Tribunal on 23 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s present partner and Pastor Greatness. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.
Did the notice comply with the requirements in s.107?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Partner (Provisional) visa in Subclass 309 in October 2014 on the basis of his relationship with Ms Man Yu Tam (the sponsor) and he arrived in Australia on 26 November 2014. The applicant provided additional evidence in support of the Subclass 100 application on 2 August 2015 on the basis of his relationship with the sponsor. The applicant provided the following evidence in the application forms:
a.In response to a question whether the applicant or other migrating dependent family members had visited any country since the grant of the temporary visa, the applicant stated ‘no’.
b.In response to a question about his relationship with the sponsor, the applicant stated that he and the sponsor had a mutual commitment to a shared life as husband and wife, or as de facto partners, to the exclusion of all others.
c.The applicant completed a declaration that he had read and understood the information provided in the application and that he had provided complete and correct information.
The applicant was granted the Subclass 100 visa on 18 April 2016. The primary decision record indicates that:
a.On 2 October 2015, while a holder of the Partner (Provisional) visa, the applicant departed Australia and travelled to the Philippines, according to the information the applicant gave on his Incoming Passenger Card (IPC) upon return to Australia on 29 October 2015.
b.On 27 March 2018 Geindielyn Aderibigbe was granted a Visitor visa and listed the applicant as her spouse. In that application, Ms Aderibigbe advised the Department that she had been in a relationship with the applicant since February 2014 and had never separated since the relationship commenced. Ms Aderibigbe advised that they have two children together.
c.On 27 March 2018 a Visitor visa was also granted to Nicky Sagnoy Aderibigbe, born on 3 July 2016. Included in that application was Nicky’s birth certificate which identified the applicant as the father.
d.On 11 October 2018 Geindielyn Aderibigbe made an application for a Partner (Subclass 820 / 801) visa. The applicant is listed as the spouse and sponsor in that application. Further, in that application Geindielyn Aderibigbe stated that from 10 October 2015 she and the sponsor had committed to a shared life to the exclusion of all others, that they lived separately since the applicant left for Australia in 2014 but the applicant visited her yearly and provided her with financial support.
In his response to the NOICC, the applicant states that his travel to the Philippines occurred after the forms were submitted for the Subclass 100 application so no incorrect answer was given. With respect to the nature of his relationship with the sponsor, the applicant states that it was genuine and committed and to the exclusion of all others. The applicant states that he met Geindielyn Aderibigbe in February 2014 and they were good friends but their relationship was non-sexual. The applicant states that in October 2015 he travelled to the Philippines for business and at that time had sexual intercourse with Geindielyn Aderibigbe as they were intoxicated. The applicant refers to a ‘one night stand’ which resulted in pregnancy. The applicant states that in April 2016 he had an argument with the sponsor where threats were made and he left the matrimonial home. The applicant states that when he travelled to the Philippines in September 2016, it was to see the child for the first time and during that visit he did not stay with Geindielyn Aderibigbe. In February 2017 the applicant submits he again travelled to the Philippines and stayed with Ms Aderibigbe and in November 2017 she gave birth to their second child and he travelled to the Philippines in January 2018 to see the child and discuss a future together. The applicant refers to his marriage to Geindielyn Aderibigbe in June 2018, his sponsorship of her for the Partner visa in October 2018 and the birth of their third child in Australia in January 2019.
The applicant submits that at the time of making the application for the Visitor visa, he and Geindielyn Aderibigbe were not married and she was not his ‘spouse’ as defined in the Act and there was no evidence of their spousal relationship prior to October 2018. The applicant states that they were simply friends, despite having a ‘one night stand’ and it was not until November 2017 that they discussed a future together. The applicant states that he and Geindielyn Aderibigbe cannot be considered as spouses within the meaning of the Act and the existence of that relationship does not mean his relationship with the sponsor was not a spousal one, and neither does the extra-marital affair.
The Tribunal finds the applicant’s evidence unpersuasive. Firstly, and significantly, it completely contradicts the information provided by Ms Aderibigbe in her own applications. As the primary decision record indicates, when making the application for the Visitor visa, she claimed to be in a relationship with the applicant since February 2014 and never separated. In her Partner visa application Geindielyn Aderibigbe also stated that she had been living separately from the applicant (implying a relationship) since 2014 and refers to a committed relationship since 2015. The applicant explains in his response to the NOICC and to the Tribunal that Geindielyn Aderibigbe completed the application form on her own and made ‘innocent mistakes’. The applicant provided a number of corrections to the forms to the Department and the Tribunal. The Tribunal does not accept that explanation. The questions about her relationship with the applicant did not require, in the Tribunal’s view, an appreciation of complex legal concepts. Ms Aderibigbe was asked when her relationship with the sponsor started and she gave a date. Not having professional representation in that process would not have detracted from her ability to state when she believed the relationship started. The Tribunal is also mindful that the applicant may have assisted Ms Aderibigbe with the process or at least with the sponsorship form and he confirmed in his evidence to the Tribunal that he did help with the Partner visa application. Having already made his own application for the Partner visa, the applicant would have been familiar with the process and the concepts involved. But even putting aside the applicant’s own knowledge, the Tribunal does not accept that Ms Aderibigbe had misunderstood what was asked of her. Rather, the Tribunal is of the view that Ms Aderibigbe answered the question in a way she believed to be correct. Such belief was perfectly reasonable, having regard to her other evidence, such as that she and the applicant had not separated since 2015, that he visited her every year, that they had shared financial resources and that they had a child (and later children) together. In all these circumstances, it was reasonable for Ms Aderibigbe to believe she and the applicant had a relationship since 2014 and that is the answer she gave in the applications. Thus, the Tribunal is of the view that the information on the application form provided by Geindielyn Aderibigbe cannot be considered unreliable because she completed the form without professional assistance, had no understanding or skills to answer questions or for any other reason. The Tribunal finds that such answers were not the result of any misunderstandings but more accurately reflect the situation between Geindielyn Aderibigbe and the applicant in the relevant period. The Tribunal does not accept that she or the applicant (to the extent of his involvement in her Visitor and Partner visa applications) made ‘innocent mistakes’ in describing the nature and the timing of their relationship.
In the Tribunal’s view, the applicant’s present evidence in response to the NOICC and to the Tribunal is nothing more than an attempt to retain his visa and the Tribunal prefers the earlier evidence given by Geindielyn Aderibigbe in her own applications. The Tribunal also considers the birth of the child to be strong evidence that the applicant and Ms Aderibigbe had been in a committed relationship earlier than the applicant now claims. The Tribunal also considers that the subsequent history of their relationship is relevant in assessing the nature of the relationship at the earlier time and it is not in dispute that the parties claim to be partners and have three children together. The Tribunal does not accept the applicant’s explanation that the first and the second pregnancies were the result of ‘one night stands’. In the Tribunal’s view, a much more likely explanation is the information supplied by Geindielyn Aderibigbe in her visa applications when she refers to having a relationship with the applicant since 2014 and a committed relationship since 2015.
The Tribunal also places weight on the information provided by Ms Aderibigbe in her Visitor visa application around March 2018 (which was provided to the applicant pursuant to s.359A of the Act). In that application Ms Aderibigbe was interviewed by an Immigration officer and is recorded to have stated that she and the applicant had been in an ongoing relationship since February 2014 and never broke up. Ms Aderibigbe stated that they communicate daily by video chat and the applicant had sent her money regularly since 2015. Ms Aderibigbe stated that they own two properties jointly and have a joint bank account which had been opened since 2016. In the Tribunal’s view, such financial arrangements, if true, are indicative of a committed relationship rather than mere friendship to which the applicant now refers.
In his written submission to the Tribunal of 12 March 2021 the applicant states that he and Ms Aderibigbe first met in February 2014, they were friends until October 2015 and had a ‘one night stand’. They continued to be friends despite having a child together. In February 2017 they had another ‘one night stand’, leading to the birth of the second child and they discussed having a future together in November 2017. The applicant states that while they did have a relationship since February 2014, it was not a spousal relationship before November 2017.
The Tribunal does not accept the applicant’s evidence. Firstly, it contradicts much of the information given in other applications, as noted elsewhere. The Tribunal considers it highly improbable (albeit possible) that the two children were born as a result of ‘one night stands’ on each occasion. In the Tribunal’s view, the conception and birth of two children is more indicative of the existence of a committed relationship than mere friendship with periodic ‘one night stands’ as the applicant suggests.
The applicant explains that Geindielyn is not well educated and did not receive assistance when completing the forms and that is why she referred to having a relationship since February 2014. The applicant submits that they also made a lot of mistakes in the Partner visa application. On 19 March 2021 the applicant provided to the Tribunal a list of answers that he claims were incorrectly recorded in the earlier visa application. As noted above, the Tribunal does not accept the applicant’s explanation. The Tribunal is mindful that many of the questions on the forms relate to basic aspects of daily existence and not complex legal constructs. The Tribunal does not accept that the perceived lack of education would have rendered Geindielyn incapable of understanding, and stating when she started a relationship with the applicant. The Tribunal also does not accept that there were mistakes in the Partner visa application. By that time the applicant himself had gone through a Partner visa application, he was familiar with the process, he is educated and proficient in English and the Tribunal does not accept that the information provided in the Partner visa application was a mistake. It is also notable that Ms Aderibigbe’s evidence in the Visitor visa application, the interview and the Partner visa application was all consistent and referred to the relationship from 2014 or 2015 and not from 2017 as is now claimed. Her evidence is supported by other factors, as Ms Aderibigbe referred to regular communication with the applicant since 2014, his visits to the Philippines and financial support. The fact that Geindielyn Aderibigbe consistently made the same claims of an ongoing relationship with the applicant since 2014 in her initial interview, the Visitor visa and the Partner visa application suggests that this information was not a mistake but rather a more truthful version of events than what the applicant has submitted in response to the NOICC and to the Tribunal.
In oral evidence the applicant told the Tribunal that when Ms Geindielyn Aderibigbe was interviewed for the Visitor visa, she made a mistake. They did not have a relationship in 2014 and they were ‘just friends’. The applicant states that in 2014 the sponsor had travelled to the Philippines with him so he could not have had a relationship with Geindielyn Aderibigbe. The Tribunal does not accept that it would not have been possible for the applicant to have a relationship with Geindielyn Aderibigbe in 2014 because his partner was there, but it would have been possible for him to have ‘just friendship’ despite the presence of the sponsor with him. The Tribunal also notes the evidence that Geindielyn Aderibigbe was unaware of the applicant’s marriage, so the presence of the sponsor in the Philippines in 2014 did not appear to have precluded the applicant from representing himself to her as being unmarried. The applicant states that in 2014 he did not tell Geindielyn about himself and there was nothing between them. In his own view, his relationship with Geindielyn Aderibigbe started after he separated with the sponsor, in 2017 or 2018. She already had two children and that is when he started thinking about their future as he was alone. The applicant states that the child was born as a result of a one night stand and he wanted to keep that baby a secret from the sponsor. The applicant states that Geindielyn Aderibigbe referred to having a relationship with him because she wanted to get the visa. He claims there was nothing between them in 2014 and they did not live together, which would be confirmed by others.
With respect to financial support, the applicant told the Tribunal that he borrowed money from Geindielyn’s friend in 2014 and in 2015 he borrowed money from a friend in Australia and sent money to Geindielyn Aderibigbe to give to that friend. He could not send money directly to the friend because he had no rapport and no details of that friend and so the money was sent to Geindielyn. The applicant states that he did not give any money to Geindielyn Aderibigbe in 2015 until he found out she was pregnant. When asked why Ms Aderibigbe’s evidence to the Department was different, the applicant submits that Geindielyn told the Immigration officer about him providing her with financial support since 2015 because she wanted to get the visa. He said he did not tell her about his marriage to the sponsor, but because they were just friends, he felt he had no obligation to tell her about his affairs. Following the hearing, the applicant provided to the Tribunal evidence of money transfers and AUSTRAC records. These show regular transfers between the applicant and Ms Aderibigbe. It is impossible to determine from these documents whether the funds were sent to Ms Aderibigbe as a form of financial support to her, or to be passed to a friend and for that reason, the Tribunal finds this evidence unhelpful. The applicant also provided evidence of several money transfers that occurred over the years and the Tribunal accepts that evidence that transfers were made but, again, the purpose of these cannot be established from the documents.

With respect to communication to which Geindielyn Aderibigbe referred, the applicant states that they had communication about the money transfers but not communication ‘as such’. The applicant states that they did not have daily communication and maybe she said that in order to establish a relationship and get the visa. With respect to the joint account and joint properties, the applicant states that he opened an account in the Philippines in 2011 for his business. In 2016 when the child was born, he added Geindielyn to his account. The applicant provided evidence from the bank and the Tribunal accepts that the bank account was opened in 2011 and not in 2016. However the applicant admits that Geindielyn Aderibigbe was added to that account in 2016. With respect to properties, the applicant states that the condominium was bought in his own name only and he paid for it from his own income and Geindielyn had nothing to do with this property financially. He cannot explain why Geindielyn stated at the interview the property was in joint names as it was not true. The applicant states, with respect to the Jeepney property, that he used a friend to buy that property and he put it in Geindielyn’s name on the papers so she could benefit from it. That would suggest that by 2016 there were significant joint financial arrangements between the applicant and Geindielyn Aderibigbe (both names on the bank account and a property purchased by the applicant which Geindielyn Aderibigbe had the benefit from). That may suggest that the relationship started well before 2017 as the applicant now claims. The applicant states that it was 2017 when the second baby was born, when he started thinking about a future with her and about a relationship. Having regard to all the evidence, the Tribunal finds that statement unpersuasive.
The applicant told the Tribunal that when he travelled to the Philippines, he stayed with a pastor and he gave his addresses on the application forms. In late 2015 he spent three weeks in the Philippines. He was experiencing trauma because of the family violence and he got drunk. He met up with Geindielyn and she conceived. After Geindielyn Aderibigbe conceived, he asked her to live with her mother who would help her. In 2016 when the child was about three months old, he travelled to the Philippines and spent about three months there. He stayed with the pastor but he went to the province where Geindielyn lived and stayed there for two days and he was introduced to her family. He undertook to support that child but they did not discuss marriage or future family. At that time the second child was conceived. The applicant states that the second child was also conceived as a result of a ‘one night stand’ and after he learned that Geindielyn conceived the second child, he made up his mind to be with her.
With respect to financial support, the applicant states that he did send funds to Geindielyn in 2015 but the funds were sent as repayment to another friend. (Following the hearing, the applicant provided to the Tribunal an AUSTRAC list of transactions but as these do not show recipients, the Tribunal found these unhelpful. The applicant also provided evidence of financial transfers to Ms Aderibigbe, which is addressed above.) The Tribunal is unpersuaded by that explanation, given Ms Aderibigbe’s statement at the interview that the applicant had been providing her with financial support since 2015. In the Tribunal’s view, she would be very capable of differentiating between money sent to her and money sent to her to be given to another person. As for the applicant’s explanation that Ms Aderibigbe made up evidence in order to get the visa, in the Tribunal’s view, it is equally possible (and more likely, given the consequences) that the evidence given in response to the NOICC and to the present Tribunal has been ‘made up’ and that the evidence given by Ms Aderibigbe earlier is more reliable.
The applicant states that in 2016 he did not send any funds to Geindielyn and in 2017 he was sending her funds after she became pregnant with the second child. The applicant states that in February 2017 he bought property in his own name and allowed Geindielyn to live in the property and there is another property which was bought in Geindielyn’s name only. On 19 March 2021 the applicant provided to the Tribunal evidence relating to the properties. In the Tribunal’s view, what is relevant is not whose name appears on the legal documents but whether both parties considered the properties to be for joint or family use. Geindielyn’s answers at the interview indicate that she did consider the properties to be joint, irrespective of whose names appear on the documents, and that is strong evidence, in the Tribunal’s view, that the parties pooled their resources, shared their finances and were in a relationship much earlier than the applicant now claims. The applicant also refers to his bank account. He states he opened an account in the Philippines in January 2011 and added Geindielyn’s name in October 2016 as he wanted to provide his partner with support. The applicant states that Geindielyn had her own account and he sent her money in 2015. The Tribunal accepts that the applicant did not add Geindielyn to his account until late 2016 but the Tribunal has formed the view that there is other evidence of the sharing of finances, as outlined above.
Ms Geindielyn Aderibigbe told the Tribunal in oral evidence that she made a mistake in her previous applications and her relationship with the applicant started in 2017. She states that the sponsor did not tell her about his relationship in Australia and for that reason she believed they were in a relationship from 2014 but it was really from 2017. Ms Aderibigbe said that she believed the applicant was single and that is why she stated in her initial application that they had a relationship from 2014 and later on she also made a mistake because she did not know about his relationship in Australia. Ms Aderibigbe said that the problem was that she did not know the applicant had a relationship in Australia and that is why she fell pregnant and took his calls. The Tribunal finds that explanation unpersuasive because Ms Aderibigbe’s perceptions of her relationship with the applicant would not be affected by the sponsor’s circumstances in Australia. The applicant claims that it was possible for him to have a child with Geindielyn Aderibigbe while having a genuine and exclusive relationship with the sponsor and the Tribunal accepts that the existence of a child with another person does not necessarily preclude the existence of a genuine and committed relationship. In the same way, it is entirely possible to have more than one committed relationship at the same time. That is, it would have been possible for the applicant to form a committed relationship with Geindielyn Aderibigbe, and for her to perceive that such a relationship existed, while he claimed to be in a relationship with the sponsor (which would not have been to the exclusion of all others). The Tribunal does not accept that Ms Aderibigbe’s perceptions of the relationship can be defined by the applicant’s interactions with the sponsor in Australia, so that she believed there was a relationship if she thought he was single (and she refers to various aspects of the relationship such as frequent communication, financial support, etc.) but no relationship if he had a partner in Australia.
The Tribunal does not accept Ms Aderibigbe’s present evidence that the relationship started in 2017 and the Tribunal has formed the view that such evidence is given to enable the applicant to retain his visa and continue to sponsor her and the children. The Tribunal is of the view that her earlier evidence given in the Visitor visa application and the Partner visa application is more reliable and prefers that evidence.
The Tribunal acknowledges that the applicant had provided several notifications of incorrect information, including a statement of incorrect answers he provided to the Tribunal. However, the Tribunal has formed the view that the more recent version of events is nothing more than an attempt by the applicant to retain his visa. For the reasons stated elsewhere, the Tribunal has formed the view that the applicant is not a person of credibility and that he is willing to provide false information in his dealings with the Department. The Tribunal has formed the view that this is what the applicant and his partner have done in their present description of their relationship.
Secondly, the Tribunal places weight on the fact that the applicant’s relationship with the sponsor ended almost immediately after the applicant was granted his permanent visa. The primary decision record indicates that the permanent visa was granted on 18 April 2016 and the applicant claims his relationship with the sponsor ended in April 2016 following a violent argument.
The applicant told the Tribunal that he had little knowledge of the processes and had no English and did not understand what it meant when he was granted the permanent visa. The applicant states that he contributed to the family and it was the sponsor who ‘kicked him out’. The applicant states that there were many arguments about money, and the sponsor was often aggressive. Before the relationship broke up, they had an argument and he reported it to Immigration and the police and they suggested for him to leave the family home and he slept in the car for three weeks and then stayed with a friend. The applicant claims there was no link between the relationship breakdown and the grant of the visa. The Tribunal has considerable difficulty accepting the applicant’s evidence that he had no understanding of what the permanent residence meant, given the amount of paperwork that was required during the visa process. Only a year later the applicant was able to initiate and go through the divorce process (he claims to have received help from a court official) and soon after sponsor his present partner for the Partner visa. The Tribunal does not accept the applicant had no appreciation of the visa process and no understanding that he had been granted the permanent visa. As for the applicant’s claim that he had been subjected to violence and was ‘thrown out’ of the family home, the Tribunal is also mindful of the applicant’s evidence that the problems in his relationship with the sponsor started much earlier. Yet the applicant does not claim these problems led to the separation or the relationship breakdown and it was precisely at the time the applicant was granted the permanent visa that he claims the relationship ended. The Tribunal is not convinced that was a coincidence.
The applicant claims in response to the NOICC that he applied for divorce in June 2017. He provided in response to the NOICC a copy of the divorce application showing that the separation occurred on 20 April 2016, merely two days after the permanent visa was granted. In the Tribunal’s view, the haste with which the applicant’s relationship with the sponsor ended following the grant of a permanent visa to him supports the Tribunal’s view that this relationship was not a genuine and mutually committed one by the time the applicant was seeking the permanent visa and supports the evidence of Ms Aderibigbe in her own visa applications.
The Tribunal accepts the applicant’s submission that the existence of an extra-marital affair does not in itself exclude the existence of a genuine and committed and exclusive relationship between the applicant and the sponsor. The applicant submits that because there was a child involved, he felt obliged to support the child. The applicant claims that he should not be penalised for his infidelity. However, in this case, the Tribunal does not accept there was simply an extra-marital affair between the applicant and Geindielyn Aderibigbe, or a series of ‘one night stands’ as the applicant is seeking to portray their relationship now, and the Tribunal does not accept that the relationship between the applicant and Geindielyn Aderibigbe could be defined by his perceived obligation to support the child. The Tribunal does not accept the claims that the applicant and Geindielyn Aderibigbe were ‘merely friends’ until the birth of their second child. As noted above, it contradicts Geindielyn Aderibigbe’s own evidence in her visa applications and, in the Tribunal’s view, other evidence does not support that version of events. The Tribunal is also of the view that the existence of three children from a relationship is a strong indication that from the time of conception of the first child there may have been mutual commitment between the parties, rather than a series of ‘accidents’.
Thirdly, the Tribunal has formed the view that the applicant is not a person of credibility because he had provided incorrect information to the Department concerning his earlier relationships and a child. The applicant provided a statement to the Tribunal on 23 February 2021 in which he outlined the circumstances of the previous relationships. The applicant states that his first partner ‘may’ be alive and may have had contact with the sponsor, although he submits that others are ‘out to destroy him’ and that is the reason for the allegations. In his submissions to the Tribunal the applicant claims he was forced to marry his first partner Christiana, that he was drugged throughout the marriage and was unsure about the paternity of the first child David. They divorced in 1994. The applicant states this partner is still alive. The applicant refers to the discrepancies in the two Facebook profiles of this partner, stating that such discrepancies suggest she is not a credible witness and her evidence should not be used to cancel his visa. The applicant states that he married another person, Christiana Susola in 2008 and it was this person who died in a car accident in 2011. The applicant submits that when he referred to his wife Christiana dying in a car accident, he referred to that person and not his first spouse. He did not have children in that relationship. The Tribunal acknowledges that this information may have been correct. However, as the Tribunal noted in its s.359A correspondence, there is an allegation which refers to the applicant claiming that his first partner Christiana was killed in a car accident. On his own evidence, the marriage which took place in 2008 was not his first marriage but his second marriage. The applicant concedes that he was previously married to Christiana until 1994 and that there is a child of that relationship. The applicant confirmed in his oral evidence to the Tribunal that he did not declare that relationship in his dealings with Immigration and he claims that he did not mention the first relationship because it was not voluntary. However, the applicant does not deny the fact that he was legally married and subsequently legally divorced. That makes it a valid marriage, whatever the applicant’s thoughts about it. In the Tribunal’s view, it was not for the applicant to determine what information should be provided, based on his personal perceptions of, or feelings about, the marriage. He was legally married and was required to disclose that information in his dealings with the Department. He had not done so. The Tribunal finds that the applicant had misled the Department by failing to mention his first marriage. The Tribunal finds that the applicant is not a person of credibility.
The applicant claims that he never considered his first child David as his son because he was forced to marry and was drugged during the marriage and his sexual relationship was without consent. Putting aside the Tribunal’s concerns with the plausibility and the veracity of the applicant’s claims, the Tribunal is of the view that questions about the existence of a child relate to the basic issue of biological relationship. If the applicant is a biological father of a child, however that child was conceived and whether or not the applicant wished to have a child (and there is no evidence this child was adopted by another person), then in the Tribunal’s view, the applicant has a child. The applicant’s acceptance of that child, or his views about that child, are irrelevant. Thus, the Tribunal finds, having regard to the applicant’s submission of 12 March 2021, that the applicant had a child from his relationship with his first partner Christiana. However, the applicant claimed in his earlier dealings with the Department that he did not have a child from his first relationship. The Tribunal finds that the applicant gave an incorrect answer and had provided false or misleading information to the Department. That supports the Tribunal’s view that the applicant is not a person of credibility.
The applicant’s explanation in oral evidence to the Tribunal was somewhat different. The applicant states that he did not consider the child as his son and he states that he did mention the first relationship to the sponsor but she did not want to mention it when filling in the forms. The Tribunal is of the view, however, that the content of his application is the applicant’s responsibility and it is not sufficient to state that another person did not feel like providing certain information on the form. The representative notes that this issue has already been addressed in the previous application and the case had been previously remitted by the Tribunal so the issue had been resolved. That may be the case but in the Tribunal’s view, the issue is relevant to the assessment of the applicant’s credibility irrespective of the outcome of the earlier application.
Another matter of concern for the Tribunal is the applicant’s evidence about his financial arrangements with the sponsor. During the hearing the applicant told the Tribunal that he and the sponsor had a joint account but each also had a separate account which they used for some transactions. The applicant told the Tribunal that he did not mention the separate accounts to the Department when seeking the Partner visa and he only presented evidence of the joint account. In the Tribunal’s view, that amounts to a misrepresentation of the financial aspects of the relationship, which was one of the considerations for the decision-maker. The applicant states that he ‘was not asked’ about the separate accounts but the Tribunal does not accept that explanation. The applicant would have been asked to provide evidence of his financial affairs with the sponsor. He presented, as evidence of pooling resources with the sponsor, evidence of a joint account. He withheld evidence of separate accounts. It appears that the applicant was very selective in the evidence he presented and only presented such evidence that he thought would benefit his application. For that reason also, the Tribunal finds that the applicant is not a person of credibility.
The applicant also told the Tribunal that he assisted Geindielyn Aderibigbe in her Partner visa application and knew that the information in that application concerning the relationship commencement was incorrect but because it was consistent with the earlier Visitor visa application, he decided to provide that information anyway. For the reasons stated elsewhere, the Tribunal does not accept the information about the relationship was incorrect in the Visitor visa and in the Partner visa applications. However, it is of considerable concern to the Tribunal that the applicant claims he had knowingly and deliberately provided what he considered to be false information to the Department.
The Tribunal has formed the view that the applicant is not a witness of credibility. The Tribunal also finds that the applicant is willing to provide untruthful information to the Department to suit his personal circumstances and achieve a favourable migration outcome. This brings into question the veracity of the applicant’s evidence to the Tribunal and in response to the NOICC.

The applicant argues that the requirements of r.1.15A of the Migration Regulations 1994 (the Regulations) would not have been met in relation to his relationship with Geindielyn Aderibigbe. The Tribunal received oral evidence from a pastor in the Philippines who stated that whenever the applicant visited the Philippines, he always stayed at the pastor’s house. The Tribunal is prepared to accept that evidence but the evidence of the pastor is that the applicant used to visit friends while he stayed at his house and the applicant told the Tribunal that he spent two days with Geindielyn Aderibigbe in her own province, away from the pastor’s house. That is, the evidence is that while the applicant stayed with the pastor, he also spent time elsewhere which enabled him to conceive two children. Thus, while the Tribunal accepts that the applicant stayed with the pastor during his visits to the Philippines, in the Tribunal’s view, that does not preclude the existence of a relationship between the applicant and Geindielyn Aderibigbe. The Tribunal is mindful that the definitions of ‘spouse’ and ‘de facto’ do not require cohabitation but merely that the parties do not live apart on a permanent basis. That is, even if the applicant and Geindielyn Aderibigbe did not live together during the applicant’s visits to the Philippines, that does not mean they lived apart on a permanent basis. The primary decision record refers to Ms Aderibigbe’s evidence that the applicant provided her with financial support, that they had regular, almost daily communication and the applicant told the Tribunal that during his second visit he met Geindielyn Aderibigbe’s family and stayed at her home for a period. As noted above, the Tribunal considers the birth of a child (or children) to be strong evidence the parties’ mutual commitment to one another. Thus, it appears that some elements of r.1.15A had been met. It is also possible that there may be a genuine and committed relationship between parties where none of the requirements of r.1.15A appear to be met (ie where there is no evidence in relation to these criteria). The Tribunal does not accept the applicant’s claim that the criteria set out in r.1.15A would not have been met with respect to his relationship with Geindielyn Aderibigbe and therefore there was no relationship.
The applicant (through his representative) submits that he has difficulty understanding questions and does not always answer accurately and that is not indicative of his lack of credibility. The applicant submits that he has difficulty recalling names and dates. While this was not apparent when the applicant gave oral evidence to the Tribunal during a somewhat lengthy hearing, the Tribunal has made appropriate allowances for what may be poor memory and recall, the passage of time and sometimes the complexity of the information in question. However, the Tribunal does not consider that the inconsistencies and deficiencies in evidence were caused by lack of understanding or poor memory. Importantly, there are independent or undisputed factors, such as the birth of the applicant’s children with Geindielyn, their regular communication, their financial affairs, his failure to mention his first marriage, and the timing of the break up of the applicant’s relationship with his sponsor, which cause the Tribunal to question the applicant’s credibility and ultimately form the view that his relationship with the sponsor was not mutually committed and to the exclusion of all others by August 2015. It is not a single deficiency, which may be explicable by poor memory or lack of understanding, but several concerns which, when taken together, offer persuasive evidence, in the Tribunal’s view, about the applicant’s relationship with the sponsor and with Geindielyn Aderibigbe.
The applicant repeatedly told the Tribunal that he has sworn to tell the truth and the information he gave to the Tribunal orally was true. The Tribunal does not consider that argument persuasive because the applicant also signed a declaration to provide truthful information when sponsoring Geindielyn Aderibigbe and he concedes that some of the information has not been truthful. It is also not in dispute that the applicant did not mention his first marriage in his own application and the information he gave in that application would have also been untruthful despite the applicant signing a declaration that the information he supplied was complete and correct.
The Tribunal has considered all of the applicant’s evidence but for the reasons stated above, does not accept many of his explanations and Ms Geindielyn Aderibigbe’s present evidence. The Tribunal prefers the evidence provided by Ms Aderibigbe in her Visitor and Partner visa applications. The combination of factors, set out above, offer persuasive evidence, in the Tribunal’s view, that the applicant’s relationship with Geindielyn Aderibigbe started in 2014. The Tribunal finds that by the time the applicant submitted the forms and evidence in support of the Subclass 100 visa application, he was in a relationship with Ms Aderibigbe. The Tribunal finds that by that time, the applicant and the sponsor did not have a mutual commitment to a shared life as husband and wife, or as de facto partners, to the exclusion of all others. The Tribunal finds that by stating on the application form that the relationship existed, the applicant gave an answer that was incorrect. The Tribunal finds that there was non-compliance with s.101 in a way described in the Notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
The correct information
The applicant states that his relationship with the sponsor was a committed one until she ‘kicked him out of the house’. He states that their relationship started in 2011 and despite her aggressiveness, he maintained a committed relationship with her. For the reasons stated above, the Tribunal has formed the view that the applicant was in a relationship with Ms Aderibigbe at the time he submitted various papers for the permanent Partner visa. That is, the applicant was no longer in a genuine and mutually committed spousal relationship with the sponsor at that time. That relationship was not to the exclusion of all others. The correct information is that the applicant was no longer in an exclusive spousal relationship with the sponsor at the time he provided information to the delegate.
The content of the genuine document (if any)
This is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
An assessment of the nature of the applicant’s relationship with the sponsor was central to the decision to grant him the visa. The applicant would have been required to satisfy the decision-maker that his relationship with the sponsor was genuine, mutually committed and to the exclusion of all others. If it was known to the delegate that the applicant had another relationship (and the Tribunal formed the view that he did), that would have been relevant to the delegate’s assessment. The Tribunal finds that the decision to grant the visa was based in part on incorrect information.
The circumstances in which the non-compliance occurred
The Tribunal has formed the view that the applicant had formed another relationship before he was granted the permanent Partner visa. The applicant had not declared that relationship, nor his contact with Ms Geindielyn Aderibigbe at any time before the grant of the visa. The Tribunal has formed the view that the applicant is not a person of credibility. The Tribunal has formed the view that the breach was deliberate and that the applicant withheld the information about Geindielyn Aderibigbe so that he could obtain the visa.
The present circumstances of the visa holder
The applicant has been residing in Australia for a period of approximately six and a half years, since November 2014 and he has held a permanent visa for close to five years. The applicant has been gainfully employed and has been participating in community and church activities. The applicant told the Tribunal that he works in the disability sector and is doing a course and he is contributing to the community. The applicant refers to the support from his employer. The Tribunal accepts that evidence and accepts the applicant is well settled in Australia. He is seeking Australian citizenship.
The applicant and his present partner, Ms Aderibigbe, have three children. One of the children is an Australian citizen. His partner and children are presently in Australia awaiting the outcome of their Partner visa application the processing of which has been suspended pending the outcome of the present review.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant told the Tribunal that he did not disclose his first marriage and the child from that relationship in his application. That may have resulted in an incorrect answer being given on the application forms, contrary to the requirements of s.101 of the Act. There are no other known instances of non-compliance.
The time that has elapsed since the non-compliance
The information was given by the applicant in August 2015. Approximately five and a half years have passed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community
The applicant refers to his gainful employment as a disability support worker and his voluntary work and involvement with a church, as well as charitable contributions. The applicant provided a number of documents to the Tribunal to support these claims. The Tribunal accepts that the applicant and his partner have made contributions to the community through donations, employment and other activities.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s.140
There are no persons who would be affected by consequential cancellations. The Tribunal acknowledges that if the visa is cancelled, the applicant’s partner and two children may not be granted their Partner visas as the applicant may not be able to sponsor them if he does not have a permanent visa but they would not be subject to s.140 cancellation.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa
The applicant has three children in Australia. Two of the children were included in Geindielyn Aderibigbe’s Partner visa application and the applicant told the Tribunal they presently hold bridging visas. The applicant submits that his youngest child Mary, born in January 2019, is an Australian citizen. The applicant states that it is in the best interests of that child to be in Australia with her parents as the child requires full care of her mother and father. The Tribunal accepts that it is in the best interests of the children, all of whom are young, to have the care of both parents but it is not apparent to the Tribunal why that should be in Australia. That is, the Tribunal does not consider that the parental care can best be provided in Australia and not in any other country.
The applicant also submits that he would not have adequate health care in Nigeria and that may also affect his children’s best interests. For the reasons stated below, the Tribunal does not accept that the applicant will not receive adequate health care in another country.
The applicant told the Tribunal that if his visa is cancelled, he will not return to Nigeria but he would stay in the Philippines. The applicant states that at present, he cannot travel to the Philippines due to Covid but he will have a right to apply for a visa in the Philippines on the basis of his relationship. Following the hearing, the applicant provided evidence showing that due to Covid, applications for visas are temporarily suspended until 21 April. The Tribunal acknowledges that there may be a delay in the applicant being able to apply for, or being granted a visa to the Philippines but the Tribunal is of the view that if the applicant cannot leave Australia due to Covid, he may be eligible to seek a Bridging E visa on departure grounds until overseas travel is possible.
The applicant told the Tribunal that he wants to keep his family in Australia so he can provide for his children. The applicant states that the standard of education in Australia is better. The applicant told the Tribunal that in the Philippines there is no government support, for example, no payments for child care or health care, which is free in Australia. The Tribunal is prepared to accept that evidence but does not consider that the absence of government support means that such services would not be available to the children. The applicant has not established what it would take for the children to have access to adequate education, health care and other services and has not satisfied the Tribunal that he would be unable to access such services, whether these are to the Australian standard or not.
The applicant told the Tribunal that in the past he used to run an internet café in the Philippines but that business is no longer operating and it would make very little money anyway. The applicant states that as a foreigner, he cannot operate a business or it would be difficult. The applicant states that Geindielyn Aderibigbe used to run a stall at the market and it is not apparent why she would be unable to obtain a job upon returning to the Philippines. The applicant told the Tribunal that they sold one property but the second property is still there. It is now used by a relative but they can give notice and utilise it but the applicant claims it is too small for their family. The Tribunal is prepared to accept that the applicant and the family may have better opportunities in Australia, including employment opportunities but the applicant has not satisfied the Tribunal that there would be no opportunities for the family in the Philippines and that the family would suffer financial hardship. The applicant has not satisfied the Tribunal that he and his partner would be unable to provide for the children. The Tribunal does not accept these claims.
The representative submits that it is risky for the children as there are instances of kidnapping of children and lack of government support and this would be detrimental for the children, particularly for the Australian citizen child. The applicant states that the children may be forced into prostitution if there is no means of supporting the family. As noted above, the Tribunal is not satisfied the family would have no financial means as the Tribunal is mindful that both the applicant and his partner had been able to earn a living in the Philippines in the past and the Tribunal is not satisfied they would be unable to do the same in the future, whether or not they can earn at the same level as they did before or as they do in Australia.
Importantly, the Tribunal does not necessarily consider that the fact that the youngest child is an Australian citizen means that it must be in the best interests of that child to live in Australia. It is not an unassailable assumption that a citizen must live in their own country. It is not uncommon for families to move to other countries for a variety of reasons, including family relationships, employment, visa or other considerations. The applicant and his partner made the decision to bring the two older children to Australia despite these children being citizens of the Philippines and having spent their entire lives in that country. Thus, it cannot be said that being a citizen of a country necessarily means that a person must be brought up in that country. The youngest child is two years old and while the child was born in Australia and has not lived anywhere else, the Tribunal is of the view that at this age, the child can live anywhere if she is in the care of her parents.
The Tribunal also acknowledges that the two older children have been living in Australia for a few years. However, they had previously lived in the Philippines. As noted above, the applicant and his partner made the decision to uproot the children and bring them to a country where they had no language, no social contacts or friends, no extended family, no knowledge of the Australian way of life, etc. The Tribunal does not consider that bringing the children to Australia was beneficial to them while taking the two elder children to their country of birth would be detrimental to the children. In the Tribunal’s view, as long as the children have the care and support of their parents, they can live in any country.
The Tribunal accepts that opportunities in the Philippines would be more limited for the family compared to what they may expect in Australia and that the applicant and his family might not have access to the same level of services, including health care and education as they do in Australia but the applicant has not satisfied the Tribunal that they would not have adequate access to these services. The Tribunal acknowledges the applicant’s references to various country reports and other information concerning life in the Philippines, provided in his submission of 6 April 2021. The representative submits that they came to Australia for a better life. That may be the case but the Tribunal does not consider that the ‘better life’ is sufficient to establish the best interests of the children, or to outweigh other considerations.
Overall, the Tribunal accepts the applicant’s evidence that he believes the children would have a better life in Australia. However, the applicant has not satisfied the Tribunal that they would not have normal lives, and adequate support and access to services in the Philippines. The fact that the applicant believes the children would have a better life in Australia does not mean they cannot lead normal lives in the Philippines. The applicant has not established that the best interests of the children, including the Australian citizen child, would be adversely affected if the visa is cancelled and even if that means the family will have to return to the Philippines. The Tribunal has formed the view, for the reasons stated above, that the best interests of the three children would not be adversely affected as a result of the cancellation of the visa.
However, if the Tribunal is wrong in its finding, the Tribunal would accept that it is in the best interests of the children, including the Australian citizen child, to remain in Australia with their parents. The Tribunal is mindful, however, that this consideration, while primary, is not determinative. That is, even if the Tribunal were to find that it is in the best interests of the children for the visa not to be cancelled, and acknowledging that this is a primary consideration, the Tribunal would place greater weight on the other considerations outlined elsewhere in this decision.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations

The applicant told the Tribunal that he was a Muslim before and converted to Christianity and he may face problems in Nigeria. However, the applicant told the Tribunal that he would not return to Nigeria and would instead live in the Philippines. He does not presently have a right to stay in the Philippines but he told the Tribunal he may be eligible to apply for a visa on the basis of his relationship with his spouse. The Tribunal thus finds that if the applicant is required to leave Australia, he would not live in Nigeria but would travel to and live in the Philippines. The applicant does not claim he would have any problems in the Philippines as a Christian. The Tribunal finds that non-refoulement obligations do not arise in this case.
The applicant’s partner and children are in Australia but hold temporary visas and may leave Australia, should the applicant be required to leave. The Tribunal does not consider that the cancellation of the visa would lead to the breach of the family unity obligations.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and would be subject to mandatory detention and removal from Australia. The applicant told the Tribunal that he has been granted a bridging visa. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although there are limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some visa applications that he may wish to make offshore. The applicant would lose any entitlements he may have acquired as a permanent resident of Australia. The applicant’s eligibility to sponsor his partner and children is likely to be affected if the applicant is not the holder of a permanent visa and it is unlikely that the applicant’s spouse and elder children would be granted visas if the applicant is not a permanent resident of Australia.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
Many of the issues raised by the applicant are addressed above under different headings.
The applicant included with his response to the NOICC a number of character letters and letters in support of the applicant. The Tribunal acknowledges that evidence and that those who provided the references believe the applicant to be a good person. The Tribunal acknowledges the applicant’s evidence about the support he received from his employer.
The applicant claims that the cancellation of the visa and the family’s return to the Philippines would cause the family financial hardship as he would not be able to work in the Philippines. The applicant suggests that his children may be forced into prostitution. This issue has been addressed above. Essentially, the Tribunal is not satisfied that the applicant and his partner would be unable to find gainful employment or business opportunities. The applicant has not presented evidence of having explored business opportunities or employment opportunities in the Philippines for himself or his partner. He has not presented probative evidence of how much money he would need and how much money he presently has or can otherwise access. There is no valuation for the overseas property and no indication of how much income (if any) can be derived from it. Following the hearing, the applicant provided to the Tribunal copies of his current bank accounts with very little savings but the Tribunal is mindful that the accounts are for the past month only, it is not apparent what funds, if any, the couple had prior to these statements being issued and whether there may be funds held elsewhere, that have not been disclosed by the applicant. The Tribunal also acknowledges that the applicant has loans, which he is gradually repaying and accepts that this financial responsibility is likely to continue until the loans are repaid. However, as noted above, there is insufficient evidence, in the Tribunal’s view, of the applicant’s total financial circumstances. The Tribunal is not satisfied on the evidence before it that the family would suffer financial hardship as a result of the cancellation.
The applicant claims that the information about the death of his previous spouse was known to the Department when his Temporary Partner visa was granted. The applicant refers to the reasoning in Jalal v MIMA as suggesting that the power to cancel does not arise where non-compliance was known at the time of visa grant, but notes that the court in Jalal and other cases rejected that argument. The Tribunal considers that the power to cancel arises even when the non-compliance was known at the time of visa grant. The Tribunal is also mindful that the NOICC specifies the ground for cancellation as arising because of the applicant’s answer to a question about his relationship with the sponsor and not to a question about his past relationships and the death of his previous spouse.
The applicant claims that he has been diagnosed with diabetes and needs to live in Australia to receive proper treatment. The applicant states that there is no proper treatment for diabetes in Nigeria and his life would be in danger for medical reasons. The Tribunal does not accept that evidence as the applicant has not provided any evidence of what treatment (if any) would be available to him in Nigeria and, importantly, because the applicant told the Tribunal that he would not return to Nigeria but would live in the Philippines. The applicant states that the medication he is presently taking is not available in the Philippines and their medication is not helpful, however, the applicant also told the Tribunal that he had been diagnosed prior to his entry to Australia and it appears that he was able to manage the condition despite his claimed absence of appropriate treatment.
It is insufficient to state that medical care would not be available to him. The applicant has not presented evidence of what care he requires, what care is or might be available, what arrangements can be made to receive such care (such as sending him the medication from Australia) and why he believes the available care would be inadequate. On the evidence before it, the Tribunal does not accept that the applicant would be unable to receive adequate treatment for his condition.
The applicant states that his relationship with the sponsor had been previously assessed as a genuine one. The Tribunal acknowledges that the Tribunal (differently constituted) had previously found the applicant to be the spouse of the sponsor. However, this was before the applicant met Ms Geindielyn Aderibigbe and before their child was born. Thus, the circumstances that give rise to the cancellation occurred after the previous Tribunal made its decision and the ground for cancellation set out in the NOICC refers to the information the applicant gave in 2015 and not at an earlier time. As such, the Tribunal finds the earlier findings of the Tribunal unhelpful.
The applicant told the Tribunal that at present, no foreigners are allowed into the Philippines because of Covid. If that is the case, the Tribunal is mindful that the applicant is able to seek a bridging visa in Australia on departure grounds to enable him to stay in this country until he is able to travel.
The representative submits that the applicant has not committed any crimes, had not breached any laws and has simply made a mistake of infidelity. The representative submits that the cancellation of the visa punishes not only the applicant but his entire family. As noted above, the Tribunal does not consider that the ground for cancellation can be classified as a simple mistake of infidelity. The Tribunal has formed the view that the applicant was no longer in a mutually committed exclusive relationship with the sponsor by the time he provided various papers to the Department in relation to the permanent visa and that was central to his eligibility for the Partner visa.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the applicant had formed a relationship with another person and his relationship with the sponsor was not genuine and mutually committed to the exclusion of all others and therefore the applicant answered a question on the form in a way that an incorrect answer was given. The Tribunal considers there are reasons why the visa should not be cancelled. In particular, the applicant has been living in Australia for a number of years and is well settled in this country, he has been gainfully employed and has contributed to the community. Importantly, the applicant’s partner and three children are in Australia and their ability to be granted the permanent visas (with the exception of the Australian citizen child) is dependent on the applicant retaining his permanent residence. The Tribunal accepts that considerable hardship may be caused to the family if the visa is cancelled and that the cancellation is likely to mean that the entire family would return to the Philippines. The Tribunal acknowledges the applicant’s evidence that the opportunities in the Philippines may not be the same as the opportunities in Australia and the Tribunal accepts the evidence that he would have to ‘start again’ and re-establish his life in that country. The Tribunal also accepts that the applicant feels he would have access to better health care in Australia while his children will have better education and other services in Australia. The Tribunal acknowledges the applicant’s evidence and the financial difficulties the family would face in the Philippines and evidence of his financial obligations in Australia. All of these matters weigh against the cancellation.
The Tribunal has formed the view that the cancellation would not be in breach of Australia’s non-refoulement obligations. With respect to the best interests of the children, including the Australian citizen youngest child, the Tribunal has formed the view that the applicant has not presented sufficient evidence that the children will not have adequate facilities and opportunities in the Philippines and that the cancellation of the visa would not detrimentally affect their best interests, as long as the children remain with both parents. However, if the Tribunal is wrong in these findings, the Tribunal has also considered this case on the assumption that the best interests of the children are to remain in Australia with the applicant and their mother. The Tribunal acknowledges it is a primary consideration. However, as noted above, it is not a conclusive one.
The Tribunal is of the view that the circumstances in which the non-compliance occurred and the fact that the decision was based on an incorrect answer, outweigh other considerations. This is because the applicant’s relationship with the sponsor was absolutely central to the decision to grant him the visa. If the delegate was not satisfied that the relationship was genuine, mutually committed and to the exclusion of all others, the applicant would not have been granted the visa. The Tribunal has formed the view that by the time the applicant submitted the papers for the permanent visa, his relationship with the sponsor was no longer mutually committed and to the exclusion of all others and that information was crucial to the applicant’s eligibility for the visa. In the Tribunal’s view, such circumstances weigh very heavily in favour of the cancellation and outweigh other considerations, even if the entirety of the applicant’s evidence was accepted.
The Tribunal has also found that the applicant had been untruthful in his other dealings with Immigration, noting his evidence that he did not disclose the full financial situation when seeking his Partner visa and he did not disclose his first marriage. The applicant’s lack of candour in his dealings with Immigration does weigh, in the Tribunal’s view, in favour of the cancellation.
The Tribunal finds that the considerations that favour cancellation outweigh the other considerations.
Conclusion
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.
Kira Raif
Senior Member

[2021] AATA 2274

12 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction